Citation Nr: 9903656
Decision Date: 02/09/99 Archive Date: 02/17/99
DOCKET NO. 95-37 929 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUES
1. Entitlement to service connection for post traumatic
stress disorder (PTSD).
2. Entitlement to an increased rating for major depressive
disorder, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant and son
ATTORNEY FOR THE BOARD
John Z. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1950 to May 1954
and from July 1958 to October 1966.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Boise, Idaho,
Department of Veterans Affairs (VA) Regional Office (RO).
This case was previously before the Board and was remanded to
the RO in January and March 1977 for further development, and
in June 1998, at which time the Board denied entitlement to
an effective date, prior to October 31, 1994, for a grant of
service connection for a psychiatric disability.
The case has been returned to the Board for appellate review.
FINDINGS OF FACT
1. The claim for service connection for PTSD is not
supported by cognizable evidence showing that the claim is
plausible or capable of substantiation.
2. Major depressive disorder does not result in more than
definite social and industrial impairment; nor does it
reflect occupational and social impairment with reduced
reliability and productivity due to symptoms such as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short and long-term memory; impaired judgment; impaired
abstract thinking; disturbances of motivation and mood; or
difficulty in establishing and maintaining effective work and
social relationships.
CONCLUSIONS OF LAW
1. The veteran has not submitted a well-grounded claim for
service connection for PTSD. 38 U.S.C.A. § 5107(a) (West
1991).
2. The criteria for a rating in excess of 30 percent for
major depressive disorder have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.132,
Diagnostic Code 9405 (effective prior to November 7, 1996);
38 C.F.R. § 4.130, Diagnostic Code 9434 (1998); 61 Fed. Re.
52695-52702 (Oct. 8, 1996) (effective November 7, 1996);
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The service medical records show the onset of depressive
symptoms in 1963. Following several psychiatric evaluations
during 1966, the veteran was found unfit for duty with a
diagnosis of mixed psychoneurosis, moderate, and placed on
the Temporary Disability Retirement List. The records are
negative for any complaints or diagnosis of PTSD.
VA psychiatric examination in June 1995 resulted in a
diagnosis of major depressive disorder with passive dependent
traits. The examiner indicated that the veteran had a global
assessment of functioning (GAF) score of 50 with serious
impairments in primarily social and occupational areas.
In a June 1995 rating decision, the RO granted service
connection for major depressive disorder, evaluated as 30
percent disabling.
In a personal hearing at the RO in November 1995, the veteran
described how his difficulty with concentration had affected
his employment. He stated that he did not interact socially
and that crowds terrified him. See November 1995 hearing
transcript.
VA medical records dated from 1995 to 1997, including a
report of psychiatric examination in March 1996, are on file.
In February 1996, the veteran was hospitalized with a chief
complaint of alcoholism and depression. He was put on the
standard detox protocol. Following psychiatric consultation,
he was treated with Venlafaxine with gradually increasing
doses. He was discharged in a much improved condition. An
addendum to the discharge report noted that his major
depression had probably driven his alcoholism.
On VA psychiatric examination in March 1996, the veteran
continued to state that he was depressed but that the
depression came and went and was very subtle. He noticed it
primarily when he began to lose weight. Currently, he slept
at least 10 hours a day and felt rested. He frequently woke
up during the course of his sleep but ended up feeling tired
in the later part of the day. His appetite was very good and
he had gained five pounds. His sexual appetite had been poor
for years and that had not changed. Sometimes when he was
alone, if he thought about the past or his lost
opportunities, he might cry. He had fleeting thoughts about
suicide but had noticed since his medication was changed that
he had not thought about that as much. His memory and
concentration subjectively continued to be a problem for him.
The examiner indicated that based on the available
information there was no conclusive evidence that the
veteran's major depressive disorder had worsened.
In April 1996, the veteran reported that he was sober and was
doing well although he felt unmotivated. Later that month,
his mood was level and he was less depressed. On evaluation
in June 1996, he continued to show improvement with more
energy and enthusiasm, but was still putting things off. In
February 1997, he reported feeling good and having some
motivation but was still falling asleep easily. In July
1997, his mood was stable and he reported waking up about
every hour at night but feeling rested when he got up.
In November 1997, the veteran's depression was noted to be
generally stable. His mood was described as positive, he was
sleeping well, and enjoying his new apartment. He was not
having any nightmares. He was continued on Venlafaxine and
Valproate for mood stabilization.
A VA social and industrial survey conducted in January 1998
indicates that the veteran had difficulty finishing his
sentences stating that he "had lost" his train of thought
but was able to proceed with the interview after refocusing.
He was cooperative, maintained good eye contact, and
demonstrated a genuine interest in answering the questions to
the best of his ability. He reported that he continued to
experience periods of anxiety and depression. He reported
ongoing moodiness, forgetfulness, and a weight loss of 25
pounds in the last two months. He stated that he is usually
able to recognize his depression before it becomes a problem,
whereas in the past, he found himself being hospitalized
every 2 to 3 years to deal with his symptoms. He avoided
going to the theater, concerts, and other crowded public
places. He stated that following a period of hospitalization
for alcohol use in February 1996 he was started on a new
medication regimen. He reported compliance with his
medications and reported some improvement in his functioning.
He indicated that despite his symptoms of depression and
anxiety being controlled by the medication there were
limitations that had affected his everyday normal life. The
veteran reported that he had a close relationship with his
son, daughter-in-law, and grandchildren and maintained
contact with a daughter in Colorado and several friends. He
stated that he lived alone and enjoyed socializing with other
residents. His hobbies were restoring furniture and writing
a book.
The veteran was afforded a VA psychiatric examination in
January 1998. The examiner noted that the veteran tried to
control the direction of the examination and was quite
talkative about various things that he wished to lecture
about. When attempts were made to contain the ramblings of
the veteran he would reluctantly cooperate. On examination,
the veteran denied hallucinations and showed no evidence of
delusions, obsessions or compulsions. He was oriented to
time, place and person. He was able to do simple
calculations and reversals as well as simple and complex
abstractions. His recent and remote memory were grossly
intact. He had a general fund of information appropriate to
his life experience and formal education. He was considered
to be in the bright/normal to superior range of intelligence.
He had intellectual insight and judgment for simple, social
situations. The veteran stated that he had PTSD and that the
root of his post traumatic stress was that he ran the largest
military prison in the United States between 1960 and 1962.
He stated that it was the trauma of running the prison at
such a young age that had given him PTSD. He indicated that
when he ran the prison he was held at gunpoint by a prisoner
and had to be rescued. He claimed he had nightmares every
night. He indicated that he had daily intrusive
recollections of a variety of military experiences. The
veteran was sent for psychological testing to specifically
address his PTSD complaint.
On VA psychological evaluation in January 1998, the veteran's
speech was clear, coherent and for the most part, to the
point. When evidently agitated he could lose his train of
thought, and would have to be brought back to the original
question or issue. His thoughts were absent of any evident
ruminations, obsession, compulsions, or phobias. His thought
process was unremarkable. His mood was, by self-report,
"good, energetic;" seemingly full, moderately stable,
variable over the course of the year, and without undue
sensitivity to external conditions. The reported fluctuation
in his mood went from a comfortable, productive, "high,"
such as he currently felt, to a very debilitating depression.
His affect was slightly anxious, serious, somewhat expansive,
generally happy, and deferential to the examiner. The
examiner noted that the veteran did not present himself
(through his responses) as significantly more troubled than a
representative (non-clinical) community member. The examiner
concluded that the veteran's response profile did not warrant
a DSM-IV diagnosis and assigned GAF score of 80.
In a February 1998 addendum to his report of the January 1998
VA examination, the examiner reported that based on a review
of the psychological testing the veteran was felt to warrant
a diagnosis of major depressive disorder, in remission. His
GAF score was 80. The examiner noted that there was no
convincing and compelling evidence that the veteran warranted
the diagnosis of PTSD or that he had a social or industrial
disability related to such a diagnosis.
In a July 1998 statement, the veteran described some aspects
of service that he found stressful.
On VA psychiatric examination in October 1998, it was noted
that the veteran was 70 years old and medically retired. His
medications were 100 mg of Venlafaxine, a powerful
antidepressant, three times a day and 250 mg of Depakote, a
mood stabilizer, twice a day. The examiner noted that the
veteran appeared to clearly and completely be able to answer
questions and appeared to be a good historian in all
respects. His intellectual functions appeared to be intact.
He indicated that he suffered from a recurring nightmare.
The nightmare had occurred every evening since his last year
of service. The nightmare involved being put on a plane or
being sent to a room in London and in many ways this
nightmare recreated the tension, depression and anxiety that
he experienced his last year of service in London, England in
1966.
When the veteran had this nightmare, which was every night
about 5 am, he was unable to go back to sleep and had to
arise and calm himself and get control of himself before he
could go back to sleep. He also stated that he was unable to
tolerate any large crowd and any open exposure in public
arenas. This made it difficult for him to shop, go to the
theater, or travel. He got adequate sleep. He was not
suicidal and had not been for several years since he got on
his current medications. He was generally able to control
his moods. He still experienced ups and downs of mood but
because of the medications he was on, and the understanding
of his illness he had he was able to get through the down and
anxious moods knowing that they would pass and he would be
able to manage.
The veteran's treatment was very important to him in that it
had substantially improved him over the last two years. His
appetite was adequate. He had neither gained nor lost
weight. He enjoyed the activities of his life. He was able
to manage his own apartment for the most part, manage his own
funds, make his own appointments, and generally manage his
activities of daily living with limitations already
mentioned. Currently, there were no active psychotic
symptoms. The examiner indicated that the symptoms that were
related to nightmares, guilt, and anxiety were part and
parcel of his overall depressive and mood disorder.
The diagnosis was major depression, recurrent. The examiner
commented that the veteran's symptoms showed a partial
remission but certainly not a full remission. It was also
noted that he was less depressed and less anxious on his
current medication and in his current treatment than he would
have been off those medications. Nonetheless, he still had
sleep disturbances with nightly nightmares, some feelings of
irrational guilt, fluctuations in mood, and a phobic anxiety.
The examiner indicated that there was no diagnosis of PTSD.
His GAF score was 58.
I. Entitlement to service connection for
PTSD.
Criteria
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence of a
well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim
is a plausible claim that is meritorious on its own or
capable of substantiation. Murphy at 81. An allegation of a
disorder that is service connected is not sufficient; the
veteran must submit evidence in support of a claim that would
"justify a belief by a fair and impartial individual that
the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak
v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and
quantity of the evidence required to meet this statutory
burden of necessity will depend upon the issue presented by
the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).
In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet. App.
498 (1995).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit at
93. Lay assertions of medical causation cannot constitute
evidence to render a claim well grounded under 38 U.S.C.A.
§ 5107(a); if no cognizable evidence is submitted to support
a claim, the claim cannot be well grounded. Id.
Accordingly, to establish a well-grounded claim, there must
be competent evidence of incurrence or aggravation of a
disease or injury in service, of a current disability and of
a nexus between the inservice injury or disease and the
current disability. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1998).
Analysis
There is no competent medical evidence demonstrating that the
veteran has PTSD. In order to establish entitlement to
service connection for PTSD, there must be competent medical
evidence establishing a clear diagnosis of the condition,
credible supporting evidence that the claimed in-service
stressor actually occurred, and a link, established by
medical evidence, between current PTSD symptomatology and the
claimed in-service stressor.
If the claimed stressor is related to combat, service
department evidence that the veteran engaged in combat, or
that the veteran was awarded the Purple Heart, Combat
Infantryman Badge or similar combat citation will be
accepted, in the absence of evidence to the contrary, as
conclusive evidence of the claimed in-service stressor. 38
C.F.R. § 3.304(f).
The evidence of record does not show a clear diagnosis of
PTSD by an appropriate mental health professional. In this
regard, the Board notes that after thorough evaluations, VA
examiners in January and October 1998 were unable to provide
a clear diagnosis of PTSD. Inasmuch as the veteran has not
submitted evidence of a present disability, his claim for
service connection for PTSD is not plausible and, therefore,
not well-grounded. Rabideau v. Derwinski, 2 Vet. App. 141,
143-44 (1992).
If the veteran were to rely on his own assertions of present
disability attributable to service, his own lay opinions
would be insufficient evidence to support his claims. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (holding that
lay persons are not competent to offer medical opinions).
Given the veteran's failure to submit well-grounded claims,
the Board need not reach the benefit of the doubt doctrine.
38 U.S.C.A. § 5107.
Although the Board considered and denied the appellant's
claim on a ground different from that of the RO, which denied
the claim on the merits, the appellant has not been
prejudiced by the decision. This is because in assuming that
the claim was well grounded, the RO accorded the appellant
greater consideration than his claim in fact warranted under
the circumstances. Bernard v. Brown, 4 Vet. App. 384 (1993).
In light of the implausibility of the appellant's claim and
the failure to met his initial burden in the adjudication
process, the Board concludes that he has not been prejudiced
by the decision to deny his appeal for service connection for
PTSD.
The Board further finds that the RO advised the appellant of
the evidence necessary to establish a well grounded claim,
and the appellant has not indicated the existence of ant post
service medical evidence that has not already been obtained
that would well ground his claim. McKnight v. Gober, 131
F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464
(Fed. Cir. 1997).
II. Entitlement to an increased
evaluation for major depressive disorder,
currently evaluated as 30 percent
disabling.
Criteria
Disability ratings are assigned in accordance with the VA
Schedule for Rating Disabilities and are intended to
represent the average impairment of earning capacity
resulting from disability. 38 U.S.C.A. § 1155. Separate
diagnostic codes identify the various disabilities.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, see 38 C.F.R. § 4.2, the regulations do
not give past medical reports precedence over current
findings. Francisco v. Brown, 7 Vet. App. 55 (1994).
The veteran's major depressive disorder is currently rated as
30 percent disabling under Diagnostic Code 9434.
In November 1996, the schedular criteria for evaluations of
psychiatric disabilities were amended. These amendments were
effective on November 7, 1996.
Following the November 1996 amendments to the Rating
Schedule, a 30 percent evaluation is warranted when there is
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events).
A 50 percent evaluation is warranted when there is
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short and long-term memory;
impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; or difficulty in establishing and
maintaining effective work and social relationships.
A 70 percent rating requires occupational and social
impairment, with deficiencies in most areas such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control; spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances; or inability to establish and
maintain effective relationships.
A 100 percent rating requires total impairment due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living; disorientation to time or place; or memory
loss for names of close relatives, own occupation, or own
name. 38 C.F.R. § 4.130, Diagnostic Code 9411.
Prior to the November 1996 amendment, the Rating Schedule
provided a 30 percent evaluation was assigned for definite
impairment in the ability to establish or maintain effective
and wholesome relationships with people, and when the
psychoneurotic symptoms result in such reduction in
initiative, flexibility, efficiency, and reliability levels
as to produce definite industrial impairment.
A 50 percent evaluation was assigned when there was
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short and long-term memory;
impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; or difficulty in establishing and
maintaining effective work and social relationships.
A 70 percent rating was assigned when there was severe
impairment in the ability to establish or maintain effective
or favorable relationships with people and the symptoms were
of such severity and persistence that there was severe
impairment in the ability to obtain or retain employment.
A 100 percent evaluation was assigned when the attitudes of
all contacts except the most intimate were so adversely
affected as to result in virtual isolation in the community;
and with totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes associated with almost all
daily activities such as fantasy, confusion, panic and
explosions of aggressive energy resulting in a profound
retreat from mature behavior; and there was a demonstrable
inability to obtain or retain employment. 38 C.F.R. § 4.132,
Diagnostic Code 9411.
In Hood v. Brown, 4 Vet. App. 301 (1993), the United States
Court of Veterans Appeals (Court) stated that the term
"definite" in 38 C.F.R. § 4.132 was "qualitative" in
character, whereas the other terms were "quantitative" in
character, and invited the Board to "construe" the term
"definite" in a manner that would quantify the degree of
impairment for purposes of meeting the statutory requirement
that the Board articulate "reasons or bases" for its
decision. 38 U.S.C.A. § 7104(d)(1).
In a precedent opinion, dated November 9, 1993, the VA
General Counsel concluded that "definite" is to be construed
as "distinct, unambiguous, and moderately large in degree."
It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." VAOPGCPREC 9-93 (O.G.C. Prec. 9-93). The
Board is bound by this interpretation of the term "definite."
38 U.S.C.A. § 7104(c).
The Court has held that where a law or regulation changes
after a claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version more favorable to the appellant will apply.
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability more nearly approximates the criteria for that
rating. Otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1998).
Analysis
After evaluating the evidence, the Board concludes that the
symptomatology attributable to the veteran's major depressive
disorder more nearly approximates the criteria for the
current 30 percent rating, rather than the criteria for a 50
percent rating under either the old or the new criteria.
While the evidence shows that the veteran continues to
experience psychiatric symptomatology as a result of
depression such as sleep disturbances with nightly
nightmares, feelings of irrational guilt, mood fluctuations,
and phobic anxiety, his symptoms have been greatly relieved
by medication. In fact, the veteran, himself, has reported a
drastic improvement in his condition - less depression, less
anxiety, and better able to control his moods - since his
medication was changed.
The evidentiary record does not show that the claimant's
major depressive disorder is productive of considerable
social and industrial impairment as to warrant a grant of a
50 percent evaluation under the previous criteria for rating
psychiatric disorders. In the same manner, the evidentiary
record does not show that major depressive disorder is
productive of occupational and social impairment with reduced
reliability and productivity due to such symptoms as
flattened affect, circumstantial, circumlocutory, or
stereotyped speech, panic attacks more than once a week,
difficulty in understanding complex commands, impairment of
short and long-term memory, impaired judgment, impaired
abstract thinking, disturbances of motivation and mood, or
difficulty in establishing and maintaining effective work and
social relationships, as required for a grant of a 50 percent
evaluation under the amended criteria for rating psychiatric
disorders.
The record further reflects that at the most recent VA
psychiatric examination in October 1998, the veteran showed
no psychotic thinking and reported enjoying the activities in
his life. His symptoms were said to be in partial remission.
Taking these facts into consideration, the evidence clearly
shows that the veteran's major depressive disorder has not
increased in severity and his overall manifestations have
significantly diminished or lessened in frequency and
severity.
The major depressive disorder, on the basis of the
evidentiary record to date has not increased in severity and
become productive of disabling manifestations approximating
those contemplated in the next higher evaluation of 50
percent under either the old or the new criteria.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.132, Diagnostic Code 9405
(1996); 38 C.F.R. § 4.130, Diagnostic Code 9434 (1998).
No question has been presented as to which of two evaluations
would more properly classify the severity of the appellant's
psychiatric disability. 38 C.F.R. § 4.7.
Although the veteran is entitled to the benefit of the doubt
where the evidence is in approximate balance, the benefit of
the doubt doctrine is inapplicable where, as here, the
preponderance of the evidence is against the claim for an
evaluation in excess of the current 30 percent evaluation
assigned.
ORDER
The veteran not having submitted a well grounded claim of
entitlement to service connection for PTSD, the appeal is
denied.
Entitlement to an increased rating for major depressive
disorder is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.